The main legal point established in the judgment is that a sale deed may entitle the buyer to joint possession of the land, but not necessarily exclusive ownership, and a suit for declaration without claiming possession can be maintainable under certain circumstances.

JUDGMENT

Rekha Mittal, J. - The present appeal directs challenge against judgment and decree dated 30.07.1997 whereby appeal preferred against judgment and decree dated 18.10.1995 passed by the trial Court decreeing suit of the appellants/plaintiffs was allowed, judgment and decree dated 18.10.1995 were set aside and suit filed by the appellants/plaintiffs was dismissed.

2. The appellants/plaintiffs claimed that they are owners in possession of agricultural land bearing rectangle No.17 killa No.10 (8-0), 3 (8-0), 18 (4-11), 19(4-0) measuring 24 kanal 11 marlas situated in the revenue estate of village Mau, Tehsil Pataudi, District Gurgaon on the basis of registered sale deed dated 16.10.1980, in respect whereof mutation No.458 was sanctioned on 12.11.1980. It is averred that appellants are in cultivating possession of suit land since its purchase. The respondents/defendants got re-opened the mutation and the same was rejected on 31.07.1986 by the Circle Revenue Officer. The rejection of mutation is illegal, null and void. They prayed for relief of perpetual injunction restraining the respondents to take forcible and illegal possession of the suit land.

3. The respondents/defendants filed the written statement and submitted that they never sold any specific killa numbers to the appellants as they were not in possession of any specific killas numbers. The answering respondents are simple, illiterate villagers and they were not told that specific killa numbers were being written in the sale deed, therefore, sale deed is illegal, void and without authority. They have denied the allegations that mutation was wrongly rejected by the Circle Revenue Officer.

4. The appellants filed replication and re-asserted their claim raised in the plaint and controverted allegations of the written statement.

5. The trial Court framed the following issues:-

1. Whether the plaintiffs are owner in possession of the suit land as alleged? OPP

2. Whether the suit is not maintainable in the present form? OPD

3. Whether the suit is properly valued for the purpose of court fee and jurisdiction? OPD

4. Whether the plaintiffs have no locus standi to file the present suit? OPD

5. Whether the suit is not within time? OPD

6. Relief.

6. The parties were permitted to adduce evidence in support of their respective contentions. Having heard counsel for the parties in the light of materials on record, the trial Court decreed the suit to the following effect:-

"....the plaintiffs are owners in possession of the suit land, therefore, the suit of the plaintiffs is decreed as no order as to costs. However, in view of the entries in Ex.Pl it is held that the present judgment has no effect as and when the suit land will be partitioned among the share holders/pattidarans."

7. As has been noticed hereinbefore, appeal preferred by one of the defendants namely Duli Chand was accepted by the Additional District Judge, Gurgaon and suit of the appellants/plaintiffs was dismissed. The reasons that weighed in the mind of first Appellate Court to set aside the judgment and decree passed by the trial Court are detailed in paras 9 and 10 of the judgment.

8. Counsel for the appellants would argue that the defendants never denied execution of sale deed dated 16.10.1980 which is otherwise a registered document and certified copy thereof is a public document. It is further argued that there is no provision in the Indian Evidence Act, 1872 (in short 'the Act') that mandates seeking permission of the Court to prove a document by way of secondary evidence, if the case otherwise falls within the purview of any of the conditions prescribed in Section 65 of the Act. Counsel would further argue that even if it is upheld that they cannot become exclusive owner of the khasra numbers detailed in the sale deed they certainly become co-sharers to the extent of land measuring 24 kanal 11 marlas and entitle to joint possession to that extent along with other co-sharers of the joint khewat/khata. The la